Filibuster

The Senate has long been famous for the filibuster: the
deliberate use of prolonged debate and procedural delaying tactics to
block action supported by a majority of members. Filibusters have been
mounted on issues ranging from peace treaties to internal Senate
seating disputes. Editorial writers have condemned them, cartoonists
have ridiculed them, and satirists have caricatured them. But
filibusters also have admirers, who view them as a defense against
hasty or ill-advised legislation and as a guarantee that minority views
will be heard.

Filibusters are permitted by the Senate's tradition of
unlimited debate, a characteristic that distinguishes it from the House
of Representatives. The term filibuster is derived from a word for
pirates or soldiers of fortune; the term originated in the House,
although the modern House seldom experiences delay arising from a
prolonged debate.

The Senate proudly claims to be a more deliberative
body than the House. George Washington described it as the saucer where
passions cool. But many people believe the modern filibuster impedes
rather than encourages deliberation. Once reserved for the bitterest
and most important battles—over slavery, war, civil rights—filibusters
today have been trivialized, critics say.

Historically the rare filibuster provided the Senate's
best theater; participants had to be ready for days or weeks of
free-wheeling debate, and all other business was blocked until one side
conceded or a compromise acceptable to all was found. In the modern era
the number of filibusters have increased but drama is rare.
Disappointment awaits visitors to the Senate gallery who expect a
real-life version of actor Jimmy Stewart's climactic oration in the
1939 classic film Mr. Smith Goes to Washington. They are
likely to look down on an empty floor and hear only the drone of a
clerk reading absent senators' names in a mind-numbing succession of quorum calls. Often the filibusterers do not even have to be on the floor, nor do the bills they are opposing.

Despite the lack of drama, filibusters and threats of
filibusters remain a common weapon of senators hoping to spotlight,
change, delay, or kill legislation. Frequent resort to the filibuster,
real or threatened, often impedes Senate action on major bills. Success
is most likely near the end of a session, when a filibuster on one bill
may imperil action on other, more urgent legislation. Since unanimous
consent is out of the question, a filibuster can be ended by
negotiating a compromise on the disputed matter or persuading a
supermajority of senators to vote for a cumbersome cut-off procedure
known as cloture. The two are often interrelated, as compromises win
more votes for cloture.

The longest speech in the history of the Senate
was made by Strom Thurmond of South Carolina. Thurmond, a Democrat who
later became a Republican, spoke for twenty-four hours and eighteen
minutes during a filibuster against passage of the Civil Rights Act of
1957. (Source: Strom Thurmond Institute.)

Dramatic filibusters do still occur on occasion, as
demonstrated by a 1987–1988 Republican filibuster against a campaign
finance reform bill. To counter Republican obstruction, the majority
leader, Democrat Robert C. Byrd
of West Virginia, forced round-the-clock Senate sessions that disrupted
the chamber for three days. When Republicans boycotted the sessions,
Byrd resurrected a little-known power that had last been wielded in
1942: he directed the Senate sergeant-at-arms
to arrest absent members and bring them to the floor. In the resulting
turmoil, Oregon Republican Bob Packwood was arrested, reinjured a
broken finger, and was physically carried onto the Senate floor at 1:19
a.m. Democrats were still unable to break the filibuster, and the
campaign finance bill was pulled from the floor after a record-setting
eighth cloture vote failed to limit debate.

As Old as the Senate

Delaying tactics were first used in the Senate in 1789,
by opponents of a bill to locate the nation's capital on the
Susquehanna River. The first full-fledged filibusters occurred in 1841,
when Democrats and Whigs squared off, first over the appointment of
official Senate printers and then over the establishment of a national
bank.

Slavery, the Civil War, Reconstruction, and blacks'
voting rights in turn were the sparks for the increasingly frequent and
contentious filibusters of the nineteenth century. Opponents had no
weapon against them, since the only way to terminate debate was through
unanimous consent, and proposed rules to restrict debate were
repeatedly rejected.

Minor curbs were adopted early in the twentieth
century. But they did not hinder Republican filibusterers from killing
two of President Woodrow Wilson's proposals to prepare the nation for
World War I: a 1915 ship-purchase bill and a 1917 bill to arm merchant
ships. As a political scientist in 1882, Wilson had celebrated “the
Senate's opportunities for open and unrestricted discussion.” After the
1917 defeat he railed, “The Senate of the United States is the only
legislative body in the world which cannot act when the majority is
ready for action. A little group of willful men… have rendered the
great government of the United States helpless and contemptible.”

Public outrage finally forced the Senate to accept
debate limitations. On March 8, 1917, it adopted a rule under which a
filibuster could be halted if two-thirds of the senators present voted
to do so. The framers of this first cloture rule predicted it would be
little used, and for years that was the case. The first successful use
of the rule, in 1919, ended debate on the Treaty of Versailles
following World War I.

Nine more cloture votes were taken through 1927, and
three were successful. The next successful cloture vote did not occur
until 1962, when the Senate invoked cloture on a communications
satellite bill.

Only sixteen cloture votes were taken between 1927 and
the successful 1962 vote, most of which involved civil rights. Southern
Democrats were joined by westerners and some Republicans in an
anticloture coalition that successfully filibustered legislation to
stop poll taxes, literacy tests, lynching, and employment
discrimination.

Many filibusters turned into grueling endurance contests. Strom Thurmond
of South Carolina set a record for the longest speech in the history of
the Senate. Thurmond, a Democrat who later switched to the Republican
Party, spoke for twenty-four hours and eighteen minutes during a 1957
filibuster of a civil rights bill. Speakers did not always confine
themselves to the subject under consideration. Democrat Huey P. Long
of Louisiana entertained his colleagues during a
fifteen-and-a-half-hour filibuster in 1935 with commentaries on the
Constitution and recipes for southern “pot likker,” turnip greens, and
corn bread.

During a 1960 filibuster of a civil rights bill,
eighteen southerners formed into teams of two and talked nonstop in
relays. Supporters of the bill had to stay nearby for quorum calls and
other procedural moves or risk losing control of the floor.
Then-majority leader Lyndon B. Johnson,
a Texas Democrat, kept the Senate going around the clock for nine days
in an effort to break the filibuster. That was the longest session
ever, but Johnson ultimately had to abandon the bill. Later in the year
a weaker version passed.

“We slept on cots in the Old Supreme Court chamber
[near the Senate floor] and came out to answer quorum calls,” recalled
William Proxmire, a Wisconsin Democrat who supported the bill. “It was
an absolutely exhausting experience. The southerners who were doing the
talking were in great shape, because they would talk for two hours and
leave the floor for a couple of days.”

Changing the Rule

Proponents of the right to filibuster gained a further
advantage in 1949, when they won a change in the rules to require a
two-thirds vote of the total Senate membership to invoke cloture,
instead of just those present and voting. But the civil rights
filibusters in the 1950s stimulated efforts to make it easier to invoke
cloture.

The 1949 cloture rule had banned any limitation of
debate on proposals to change the Senate rules, including the cloture
rule itself. Since any attempt to change the cloture rule while
operating under this stricture appeared hopeless, Senate liberals
devised a new approach. Senate rules had always continued from one
Congress to the next on the assumption that the Senate was a continuing
body because only one-third of its members were elected every two
years. Liberals now challenged this concept, arguing that the Senate
had a right to adopt new rules by a simple majority vote at the
beginning of a new Congress.

The dispute came to a head in 1959, when a bipartisan
leadership group seized the initiative from the liberals and pushed
through a change in the cloture rule. The new version permitted cloture
to be invoked by two-thirds of those present and voting, as the
original cloture rule adopted in 1917 had, and it also applied to
proposals for changes in the rules.

Once cloture was invoked, further debate was limited to
one hour for each senator on the bill itself and on all amendments
affecting it. No new amendments could be offered except by unanimous
consent. Nongermane amendments and dilatory motions (those intended to
delay action) were not permitted.

Although they did not address the continuing-body
question directly, members added new language to the rules, stating
that “the rules of the Senate shall continue from one Congress to the
next unless they are changed as provided in these rules.”

The Modern Filibuster

In 1964 the Senate for the first time invoked cloture
on a civil rights bill, thus ending the longest filibuster in history
after seventy-three days of debate. Other civil rights filibusters were
broken in 1965 and 1968. Liberal supporters of civil rights
legislation, who had tried repeatedly to tighten controls on debate,
became less eager for cloture reform in the wake of these victories. By
the 1970s they themselves were doing much of the filibustering—against
Vietnam War policies, defense weapons systems, and antibusing proposals.

In 1975, however, the liberals tried again to tighten
restrictions on debate. They succeeded in easing the cloture
requirement from two-thirds of those present and voting (a high of
sixty-seven votes, if the full Senate was there) to three-fifths of the
Senate membership (a flat sixty votes, if there were no vacancies). The
old requirement still applied for votes on changes in Senate rules.

The 1975 revision made it easier to invoke cloture. But
the revision's success relied on the willingness of senators to abide
by the spirit as well as the letter of the chamber's rules. When
cloture was invoked, senators in the past had generally conceded defeat
and proceeded to a vote without further delay.

But minorities soon found other ways to obstruct action
on measures they opposed. The most effective tactic was the postcloture
filibuster, pioneered by Alabama Democrat James B. Allen, a frequent
obstructionist. In 1976, when the Senate invoked cloture on a bill he
opposed, Allen demanded action on the many amendments he had filed
previously. He required that each be read aloud, sought roll-call votes
and quorum calls, objected to routine motions, and appealed
parliamentary rulings. Other senators soon adopted Allen's tactics.

As filibusters changed in character, the Senate's
enthusiasm for unlimited debate eroded. At the mere threat of a
filibuster it became a routine practice to start rounding up votes for
cloture—or to seek a compromise—as soon as debate began. Most of that
action occurred behind the scenes. If the first cloture vote failed,
more were taken. Meanwhile, leaders often shelved the disputed bill
temporarily, with members' unanimous consent, so that the Senate could
turn to other matters. That tactic, known as double-tracking, “kept the
filibuster from becoming a real filibuster,” as one senator said.

In 1979 the Senate agreed to set an absolute limit of
one hundred hours on postcloture delaying tactics. The television era
prompted additional restraints on debate. When live televised coverage
of Senate proceedings began in 1986, members gave new thought to their
public image. Senators shied away from several proposals designed to
quicken the pace and sharpen the focus of their proceedings for
television viewers. But they did agree to one significant change in
Senate rules. They reduced to thirty hours, from one hundred, the time
allowed for debate, procedural moves, and roll-call votes after the
Senate had invoked cloture to end a filibuster.

Despite these restrictions, filibusters continue to be
an effective tool to obstruct Senate action. And, in fact, the number
of filibusters has increased in recent decades. Several factors account
for the increase. More issues come before the Senate, making time an
even scarcer commodity than in the past. More issues are controversial,
and there is greater partisanship. In addition, constituents and
special interest groups put more pressure on members, and members are
more apt to pursue their political goals even if it means
inconveniencing their colleagues.

With this increase in filibusters has come an increase
in cloture votes as well. From 1961 to 2001, there were more than 500
cloture votes in the Senate, with more than one-third being successful
in cutting off debate. While some senators have called for additional
restrictions on filibusters, many members are reluctant to curb the
hallowed Senate tradition—a tradition cherished by Democrats as well as
Republicans.

During President Bill Clinton's second term, a
particularly partisan period from 1997 to 2001, more than 35 percent of
cloture votes were decided by a majority of 70 votes or more in favor.
This higher success rate than during previous decades suggested that
cloture was being used less to close debate on far-reaching national
issues, as often had been the case in the past, and more for political
and legislative maneuvering. That is largely because, when invoked,
cloture requires amendments to be germane to the legislation being
debated. Under normal procedures, senators may offer nongermane
amendments to get a vote on proposals that were blocked in committee or
advocated by only a few senators. In some cases, a nongermane amendment
may be aimed at advancing a political agenda or requiring senators to
take a position that can be used against them in the next election.
Those types of amendments can be avoided by invoking cloture even if a
true filibuster is not expected. Thus, increasingly, cloture votes have
come to be used by the majority party to control the Senate agenda.